NEET-PG Counselling : Why Criticism Against Supreme Court Intervention Is Misdirected?

Doctors across the country are protesting against the delay in conducting counselling for NEET-PG admissions.  Certainly, the agony of the resident doctors - who dedicated themselves to selfless service as 'COVID warriors' during the pandemic - over the uncertain wait for much delayed postgraduate admissions is understandable. Fair-minded people will definitely stand in solidarity with the protesting doctors, as their cause is just.

At the same time, there is a narrative that the Supreme Court is to be blamed for the stalling of the NEET-PG counselling process. A section of protesters attempted to hold a march to the Supreme Court. In a highly condemnable action, the Delhi police brutally attacked the protesting doctors to stop their march to the Supreme Court. An editorial in the Times of India criticized the Supreme Court's intervention saying, "Courts need to exercise more circumspection on petitions they entertain. Issues like income ceiling for EWS/OBC categories are policy decisions best left to governments...This avoidable crisis should be a lesson for courts".

In this backdrop of simmering anger amongst doctors, it is relevant to examine if there is any basis in pointing fingers at the Supreme Court for the NEET counselling fiasco. Let us have a cool-headed analysis of the situation based on the chronology of events.

July 29 : The genesis of the controversy

The dispute has its origin in the notification issued by the Central Government on July 29, which introduced 27% reservation for Other Backward Classes(OBCs) and 10% reservation for Economically Weaker Sections(EWS) in the All India Quota(AIQ) for undergraduate and postgraduate medical / dental courses (MBBS / MD / MS / Diploma / BDS / MDS) from the current academic year 2021-22 onwards.

While the OBC reservation in NEET-AIQ was introduced by the Centre following a contempt case initiated in the Madras High Court by the DMK party, the EWS quota was not introduced on the basis of any judicial intervention. In this context, it is relevant to remember that had the NEET-PG exam taken place in April this year itself as per the original notification (it was postponed to September due to COVID second wave), it would not have been possible to introduce the EWS-OBC quota in AIQ for the current admissions.

October 7 : Supreme Court questions the basis for EWS criteria, a week after the declaration of NEET-PG results

Several petitions were filed in the Supreme Court by many NEET-PG candidates challenging the constitutional validity of EWS-OBC quota in NEET-AIQ.  On October 7, a bench led by Justice DY Chandrachud had a detailed hearing of the cases, soon after the declaration of the NEET-PG results on September 28. During that hearing, the bench raised several doubts regarding the validity of the annual income criteria of Rupees 8 lakhs adopted by the Central Government to determine the eligibility for EWS quota. The bench's concerns could be summarized as two-fold :

1. How can the Rupees 8 lakh limit be uniformly applied across the country, regardless of the vast regional income disparities?
2. Noting that Rupees 8 lakh was the income limit to determine the creamy layer in OBC category, the bench asked how can the same limit be applied to EWS category, in which there is no concept of social and educational backwardness. For a detailed report of the hearing, read here.
   

Additional Solicitor General KM Nataraj, appearing for the Central Government, sought time to file a counter-affidavit to respond to the queries raised by the bench. The bench granted two weeks time to the Centre to file a counter-affidavit and posted the case to October 21.

October 21 : No counter-affidavit filed by the Centre; Court passes an order recording its prima facie view that EWS income limit was arbitrary

No effective hearing took place on October 21, as the Centre had not filed a counter-affidavit. Therefore, the bench had to adjourn the hearing to October 28. The bench also passed a detailed order recording its doubts over the reasonableness of the EWS limit.

Rs 8 Lakh Limit For EWS Making 'Unequals Equals' : Supreme Court To Centre In NEET-AIQ Case

The following are the specific queries raised by the bench :

(i) Whether the Union government undertook an exercise before arriving at the criteria for the determination of the EWS category;

(ii) If the answer to (i) above is in the affirmative, whether the criteria are based on the report submitted by Major General Sinho (2010). If the criteria are based on Major General Sinho's report, a copy of the report should be placed on the record of these proceedings;

(iii) Whether the EWS category is over inclusive;

(iv) The income limit in the criteria for the determination of the creamy layer of the OBC category and the EWS category is the same, namely, Rs 8 lakhs. While the creamy layer in the OBC category is identified for excluding a section of the community that has 'economically progressed' to such an extent that the social backwardness of the community diminishes, the EWS category is identified to include the segment which is 'poorer' when compared to the rest of the community. Therefore (a) the income criterion in respect of the OBC category is aimed at exclusion from a class while in the case of the EWS category, it is aimed at inclusion; and (b) the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome as compared to those belonging to the general category. In these circumstances, would it be arbitrary to provide the same income limit both for the OBC and EWS categories;

(v) Whether the differences in the GDP/per capita income of different States have been accounted for while arriving at Rs 8 lakhs income limit;

(vi) Whether the differences in the purchasing power between rural and urban areas have been accounted for while fixing the income limit; and

(vii) According to the notification of Union government (OM No. 36039/1/2019), families which have an income lower than Rs 8 lakhs would be excluded from the EWS category if the family holds assets of (a) five acres of agricultural land and above; (b) a residential plot of 100 square yards and above in notified municipalities and 200 square yards and above in areas other than notified municipalities; and (c) a residential flat of 1000 square feet and above. In this context, a disclosure may be made on the following aspects:

(i) On what basis has the asset exception been arrived at and was any exercise undertaken for that purpose;

(ii) Whether municipalities as required under the exception have been notified;

(iii) The reason why the residential flat criterion does not differentiate between metropolitan and non-metropolitan areas

October 25 : Centre defers the counselling

On October 25, the Central Government told the Supreme Court that the NEET counselling will not commence while the EWS-OBC issue was pending adjudication.

October 26 : Centre files affidavit justifying EWS criteria

On October 26, the Centre filed an affidavit defending the EWS criteria. The Centre argued that fixing the same income limit for OBC creamy layer and EWS was not arbitrary and added that the criteria was decided after due deliberation.

October 28 : Centre requests for adjournment of the hearing

On October 28, Solicitor General of India Tushar  Mehta requested for adjourning the hearing after Diwali vacation.

"We had detailed discussions with senior officials & those who framed the notification. I request the matter to be taken up on reopening after Diwali vacations", the SG submitted.

"We also give our assurance with regard to not starting the counselling until the validity of the notification is decided", the SG added. Acceding to the Solicitor's request, the bench adjourned the hearing.

November 25 : Centre agrees to review EWS criteria in the light of Court's observations; Court suggests deferring EWS quota to next academic year

On November 25, the Centre agreed to review the EWS criteria and sought for four weeks time.

"I have instruction to say that the govt has decided to revisit the criteria. We will formulate a committee and take a fresh decision within 4 weeks. Till then the counselling shall remain stayed only. I give my assurance", Solicitor General submitted before the bench.

Taking note of the change in the stance of the Centre, the bench suggested deferring EWS quota to next academic year, so that the counselling for the present academic year can commence without further delay. The bench expressed concerns at the admissions getting delayed.

"What happens is that we are at the end of November. Suppose you complete it by the end of December and then implementation etc and then the terms would begin only sometime in February-March. Two months, the students are losing time. This is something you may want to consider", Justice Chandrachud had told the SG.

The SG said that the Government intended to enforce the EWS quota this year itself.

"The government intends to enforce it", submitted the SG

"I am only worried that medical admissions and the medical year is being postponed", Justice Chandrachud said.

Ultimately, accepting the Centre's request for four weeks time, the Supreme Court posted the cases for hearing on January 6, 2022.

Why criticism against Supreme Court intervention is misdirected?

The above chronology of events make the following things clear:

The Centre introduced EWS quota for NEET-AIQ for the current academic year on its own without any judicial intervention,  taking advantage of the postponement of the exams due to COVID.

The Supreme Court had highlighted the flaws in the EWS criteria on October 7 itself, soon after the declaration of the NEET-PG results. But the Centre was insistent on defending the criteria. It is only on November 25 that the Centre finally decided to revisit the criteria, paying heed to the Court. Precious time was lost in between. Even on November 25, the Centre said that it wanted a further period of four weeks to finalize the criteria.

These developments lend force to the doubts that the EWS quota was introduced without proper deliberations and the same income criteria for OBC-creamy layer was mechanically applied for EWS as well.

Judicial review is a basic feature of the Constitution and is one of the foremost duties of a constitutional court. While the Court cannot formulate an executive policy, it can certainly examine if the policy is based on arbitrary and unreasonable grounds making it unconstitutional. By pointing out the arbitrariness in the EWS criteria, the Court was only discharging its constitutional role. It would have pricked the Court's conscience to allow the implementation of such a manifestly unreasonable policy. The Court had recorded its detailed reasons for its prima facie conclusions. It was then for the Centre to act upon the Court's observations swiftly to rectify the mistakes.

Therefore, the criticism against the Supreme Court for the NEET-PG counselling fiasco is misdirected.